DO WE OWN OUR BODIES?

Guido Calabresif
This article was based on a lecture Dean Calabresi gave as the Schroeder Scholar-in-
Residence at Case Western Reserve University. The Schroeder Scholar-in-Residence
program honors the founder of the Case Western Reserve University Law-Medicine
Center, Professor Emeritus Oliver C. Schroeder, Jr., by bringing to the law school
each year a distinguished scholar who conducts faculty workshops, meets with stu-
dents. and delivers a formal public address, known as the Schroeder Lecture.

DO WE OWN our own bodies? That seems like a silly question.

Of course we do. But do we? Not long ago in Pennsylvania
there was a case in which a man needed a bone marrow transplant
or he would die. 1 The only person who had suitable bone marrow
was his cousin. His cousin had nothing against McFall, the person
who needed the marrow. In fact, he liked him. But he was scared.
He was scared because although the operation to obtain the bone
marrow was not life threatening, it was quite painful. He refused to
donate the marrow, and McFall did what any red-blooded Ameri-
can would do-he went to court. He sued for an injunction to or-
der his cousin to give him the bone marrow. 2
The court denied the injunction, stating that the precedents did legal
not authorize it, as an equity court, to order the injunction. The
court expressly made no comment on what would happen if the
example
dying man sought damages from his cousin for failing to agree to
the transplant. Nor, despite some very purple language indicating
deep revulsion, 3 did the court decide the constitutionality of a law

t Dean and Sterling Professor of Law, Yale University. I am extremely grateful to the
editors of Health Matrix for their assistance in converting this lecture into article form.
1. McFall v. Shimp. 10 Pa. D. & C. 3d 90 (1978).
2. McFall did not offer to compensate his cousin for undergoing the procedure and
giving him the bone marrow. The court could, however. have required such compensation,
as it has done in some nuisance cases, in which an injunction was issued against "the nui-
sance," but the plaintijfwas required to pay damages to the defendant, "nuisancor" to com-
pensate it for having to cease its activity. See, Spur Industries v. Del E. Webb Development
Co•• 108 Ariz. 178.494 P.2d 700 (1972).
3. "For a society which respects the rights of one individual, to sink its teeth into the
jugular vein or neck of one of its members and suck from its sustenance for another member,
is revolting to our hard-wrought concepts of jurisprudence. Forcible extraction of living
body tissue causes revulsion to the judicial mind. Such would raise the spectra of the swas-
tika and the Inquisition, reminiscent of the horrors this portends." McFall v. Shimp. 10 Pa.
D. & C. 3d 90. 92 (1978).

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requiring such transplants to be given, should one be enacted.4

The man who needed the bone marrow died forgiving his
cousin. His cousin, who did not give the bone marrow, has not, to
my knowledge, been heard from since. I do not know if he is suffer-
ing the pangs of remorse, toasting in hell, or living it up with his
good bone marrow.
The case raises three issues. First, was the court correct in its
view of precedent? Was it in fact the case that the court did not
have the authority to order donation of the bone marrow? Second,
even if it was correct in terms of precedent, what about the constitu-
tional issue? Would it be constitutional for the state to order us to gov's
give our body parts to those who need them? Can a legislature in
come along and say: "Guido, you've got wonderful hair, you must row out
give it to those who need itT'S And finally, if a law like this is
constitutional, when should the legislature require such donations?
body
What are the situations in which body parts should belong to those
who need them, rather than to those who possess them?
I think that the Pennsylvania court was probably right on the
precedent issue, but the question is not as clear as I would have
thought. Its decision was probably right because our society is still
based on an autonomistic, rather libertarian philosophy, and this
individualistic point of view remains at the root of much of our law.
In other legal systems, there are elements of what is referred to in
Italy as solidarietd: solidarity with others, communitarian or collec-
tivist values. 6 But as far as I know no one goes as far as Marx, who
said: "From each according to his ability, to each according to his
utility functions."7 In Marx's terms, it is not what you possess that
counts because you do not own that. Rather, it belongs to the state,
or if the state determines, to someone else in need. In our society,
so however, there are relatively few of these Good Samaritan-type
duties.
Although there are not many situations where we say that a per-
son must do something to help out another, there are some. In a

4. ld.
5. The author recognizes that his hair has seen better days.
6. See ITALIAN CoST. art. II (addressing individual rights and their need to take
cognisance of the unavoidable duties of political, economic and social solidarity), and id. art.
XXXXII (addressing private and communal property rights).
7. What Marx actually said was, "From each according to his ability, to each accord-
ing to his need." Marx, Critique ofthe Gotha Program, in MARX &. ENGELS: BASIC WRIT-
INGS ON POLmcs &. PHILOSOPHY 119 (Lewis S. Freuer 00. 1959). However, lawyer-
economists would doubtlessly tell us that this is too vague and that we should prefer their
more sterile terminology.

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 1991] DO WE OWN OUR BODIES? 7

ang
regime which forbids abortion, ask any woman whether she owns
her own body totally or whether, to some extent, her body is re-
quired for life-preserving service. Some people might object to my
saying that forced continued pregnancy is a life-preserving service,
but that is not the issue here. My point is that anti-abortion laws
require, at least to some extent, that women be Good Samaritans.
Consider, also, more recent cases that suggest that women have a
duty to look after themselves so that their unborn children will be
born healthy.s These too can be considered Good Samaritan duties.
Another possible precedent the Pennsylvania court could have
used is the situation in which the state calls upon us for military
service. In the case of conscription, our bodies are suddenly not our
own anymore. We are obligated to go because our bodies belong to
the collective. Whether it is for the common good or the common
bad depends on one's view of the particular situation in which one is
called upon to fight. I'm old enough so that I go back to the Second
World War when most of us thought that it was for the common
good. Leaving that aside, it certainly was not up to me, as an indi-
vidual, to decide whether or not I would go.
More recently, there was a case arising out of an incident in
which soldiers were subjected to experiments with LSD without
their knowledge or consent. 9 As a result of these experiments, they
were quite badly injured. Eventually, when one of the soldiers
found out, he sued for compensation. Note that the issue in the
case was not whether the soldiers owned their bodies or whether the
government had a right to do this to them. That was taken almost
for granted. Rather, the issue was whether they could at least re-
ceive compensation from the government for the harm that was
done to them. In an extraordinary opinion, from my point of view,
Justice Scalia said that there was no duty to compensate them. 10
Their bodies, in that sense, belonged to the state.

8. Roberts, The Bias in Drog Arrests ofPregnant Women, N.Y. Times, Aug. 11, 1990,
at 25, col. 2. District attorneys across the country have adopted a policy of prosecuting
women who use drugs during pregnancy. There have been more than 50 prosecutions for
"prenatal crime" since 1987. For an overview on the current status of criminalization of
prenatal maternal drug and alcohol abuse, see SchierI, A Proposal to Illinois Legislators: Re-
vise the Illinois Criminal Code to Include Criminal Sanctions Against Prenatal Substance
Abuse, 23 J. MARSHALL L. REv. 393, 402-07 (1990).
9. United States v. Stanley, 483 U.S. 669 (1987). Master Sergeant Stanley, who volun-
teered to participate in a program to test protective clothing for use with chemical warfare,
was secretly given LSD pursuant to an army research plan to study the effects of LSD on
human subjects. He suffered significant personality problems and unsuccessfully sued the
federal government for violation of his constitutional rights.
10. Id. at 684 (Court held servicemen cannot recover for injuries that "arise out of or are

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